By the Select Committee appointed to report whether
the provisions of any bill inappropriately delegate legislative
power, or whether they subject the exercise of legislative power
to an inappropriate degree of parliamentary scrutiny; to report
on documents laid before Parliament under section 3(3) of the
Deregulation and Contracting Out Act 1994 and on draft orders
laid under section 1(4) of that Act; and to perform, in respect
of such documents and orders, the functions performed in respect
of other instruments by the Joint Committee on Statutory Instruments.

1. The bill introduces a right of access to mountain,
moor, heath and down, amends the law about rights of way, strengthens
the protection for sites of special scientific interest and provides
extra powers in connection with prosecutions for offences against
wildlife. The Department's Memorandum, printed in Annex 1 to this
report, contains a guide to the bill and a detailed commentary
on the delegated legislative powers it contains. The majority
of those powers can properly be described as confined to procedural
matters where both delegation and Parliamentary control are appropriate
and the Committee has not found it necessary to comment further
on them. Included in this category are the powers in clauses 5,
11, 16, 21, 57 and 65 and Schedules 2 (paragraph 6), 5 (paragraphs
2, 6 and 7) and 6 (paragraphs 3, 6, 7, 10, 11 and 17). In this
report the Committee discusses those powers which are subject
to affirmative procedure and the more significant of those powers
which are subject to negative procedure. The power to modify the
bill in its application to the Isles of Scilly (clause 74) and
the commencement order are, as is appropriate, not subject to
Parliamentary control.

affirmative powers

2. Clause 3(1) gives power by order to amend
the definition of "open country" in clause 1(2) so as
to include coastal land or coastal land of any description. Coastal
land is defined in clause 3(3). Any exercise of this Henry VIII
power will open coastal land to public access and in the Committee's
view it is clearly right that Parliament should consider the proposed
exercise of the power under the draft affirmative procedure.

3. Clause 48 enables regulations to amend
existing legislation (primary and secondary) affecting highways
to adapt that legislation for its application to restricted byeways.
These are a new category of highway created by clauses 43 to 45
and replace the existing roads used as a public path. They are,
in essence, highways over which there are public rights of way
on foot, on horseback and by vehicles other than mechanically
propelled vehicles. Paragraph 57 of the Memorandum explains that
the creation of a new category of highway makes it necessary to
give detailed examination to extensive existing highway legislation
to determine what provisions are appropriate to apply to these
highways. The Committee considers that affirmative procedure is
clearly appropriate for this Henry VIII power.

other powers

4. Clause 10(3) is a Henry VIII power allowing
changes to be made to the timetable for periodic review of maps
in "conclusive form" showing registered common land
and open country. In view of the very limited scope of the power
the Committee considers that negative procedure is appropriate.

5. Clause 11 provides for regulations relating
to maps. These supplement the provisions of clauses 4 to 10 and
are mostly concerned with procedural matters. Subsection (2)(j)
is concerned with "the manner in which [appeals under clause
6] are to be considered". Appeals have to be considered by
the Secretary of State or the Welsh Assembly. The Memorandum does
not explain what is intended but it seems likely that the regulations
will allow the appointment of persons to hear representations
and report to the minister or the Assembly and that the regulations
will not deal with matters such as the admissibility of evidence
and the burden of proof. On that basis the Committee considers
that negative procedure is appropriate for all regulations under
the clause.

6. Clause 17 allows access authorities to
make byelaws for the preservation of order, the prevention of
damage and "for securing that persons exercising the right
[of access] so behave themselves as to avoid undue interference
with the enjoyment of the land by other persons". Byelaws
require confirmation by the Secretary of State or the Welsh Assembly
but are not statutory instruments. In this they resemble byelaws
made by local authorities under the Local Government Act 1972
and the provisions of that Act about byelaws are applied by subsection
(5). The Committee sees no need to comment on this.

7. Clause 21(7) is a Henry VIII power allowing
the amendment of subsection (6) which lists the days which cannot
be included in any period during which the owner of land excludes
or restricts access under the clause. The Committee sees clause
21 as part of the balance which Parliament has to strike between
the rights of landowners and the need of the public to have access
to the countryside. As the clause stands, a landlord can "close"
his land to the public on up to 28 days in a year by giving notice
as provided in subsection (1) but he cannot do so at weekends
or on the public holidays listed in subsection (6). The Henry
VIII power in subsection (7) could be used to allow week-end closure
at one extreme or, at the other, to prohibit closure on any Friday,
Saturday, Sunday or Monday. Presumably the power is intended to
allow the substitution of other days of public celebration (though
if these are made bank holidays they automatically come within
subsection (6)). If the power is intended to be used in this way
and the Bill can be amended to limit it accordingly, negative
procedure is appropriate. If it is to be unlimited, the House
may see the power as wholly unacceptable.

8. Clause 30 provides for regulations relating
to exclusion or restriction of access. Subsection (1) lists the
matters which may be covered by the regulations. The majority
of these are procedural but (k) to (m) relate to appeals under
clause 28. Those are appeals by persons interested in land whose
applications under clause 22 or 23 or representations under clause
25(4) have not been successful and the appeals lie to the Minister
of Agriculture, Fisheries and Food, the Secretary of State or
the Welsh Assembly. Our comments on clause 11 apply here also.

9. Clause 36(6) is another provision allowing
regulations to make provision as to the manner in which appeals
are to be considered. Our comments on clause 11 apply here also.

10. Clause 50 supplements clause 49 which
provides for the extinguishment of unrecorded rights of way. Clause
49(1)(c) excludes from the operation of the clause an "excepted
highway" as defined in clause 50. Subsection (1) lists three
kinds of footpath or bridleway and paragraphs (d) and (e) allow
others to be added by regulations made by the Secretary of State
(or the Welsh Assembly). Similarly subsection (5)(c) and (d) allow
public rights of way to be excepted by other regulations. The
Committee considers that negative procedure (provided by subsection
(6)) is appropriate.

11. Clause 52 provides the cut-off date for
clauses 49 and 51. Subsection (1) specifies 1 January 2026 but
regulations under subsection (2) can substitute a later date and
may specify different days for different areas (subsection (3)(a)).
The Committee considers that negative procedure (provided by subsection
(6)) is appropriate for this Henry VIII power particularly as
subsection (3)(b) imposes a five year limit on postponement.

12. Schedule 2 makes provision for the restrictions
to be observed by members of the public exercising the right of
access under the bill. Paragraph 1 lists those things which such
a person must not do; paragraph 2 supplements paragraph 1(j),
(o) and (p) and paragraph 3 allows regulations to amend paragraphs
1 and 2. In our comments on clause 21 we have referred to the
balance that has to be struck between the rights of landowners
and the needs of the public. Schedule 2 is an essential part of
that balance. In deciding whether to grant rights of public access
to land, Parliament will wish to know the limitations on those
rights and paragraph 1 contains significant limitations. The Committee
draws attention to some of those restrictions in order to show
their importance to the balance which has to be struck. Sub-paragraph
(o) denies the right of access to a person who intimidates persons
on the land so as to deter them from any lawful activity or who
obstructs or disrupts such activity. Sub-paragraph (p) similarly
restricts those who actions disturb, annoy or obstruct any person
engaged in a lawful activity on the land whatever their intentions
may be. These are only examples. We could point to most of the
other provisions as being significant and which ought to remain
on the face of the bill. If the Henry VIII power in paragraph
3 were used to remove any of those sub-paragraphs it would produce
a significant shift in the balance against landowners. The Committee
invites the House to consider whether it is appropriate to delegate
a power which could change the basis on which Parliament granted
the right of access conferred by clause 2. We accordingly recommend
the deletion of paragraph 3 of Schedule 2.

13. There is another Henry VIII power in paragraph
4(2) of Schedule 2 but this is limited to changing the period
during which a dog may not be taken on to the land unless it is
kept on a lead. The Committee's comments on clause 21 and paragraph
3 of Schedule 2 are relevant here also. The Committee sees the
requirement that dogs must be kept on lead if brought on access
land between 1 March and 30 June as part of the balance which
should not be altered by delegated legislation. If the House accepts
our recommendation that those powers should be deleted, then paragraph
4(2) should go too.

14. Schedule 5 is concerned with definitive
maps and statements and restricted byeways. Paragraph 4 inserts
section 54A in the Wildlife and Countryside Act 1981 and subsection
(7) of that section allows an order to make amendments and repeals
in the 1981 Act once the cut-off date for modifying the definitive
map has passed. In the Committee's view this Henry VIII power
is there to "prune dead wood", and negative procedure
is appropriate.

15. Schedule 6 makes amendments to earlier
legislation concerned with the stopping up and diversion of highways.
Paragraph 7 inserts sections in the Highways Act 1980 and new
section 121E(7) and (8) allows regulations to make "further
provision" about appeals under new section 121D(1). The Committee
regards negative procedure as appropriate for this power.

16. Paragraph 4 of Schedule 6 inserts a new section
118B in the 1980 Act about the stopping up of footpaths and bridleways
for crime prevention purposes. Subsection (1)(a) applies to areas
designated by order of the Secretary of State. No Parliamentary
procedure applies but paragraph 79 of the Memorandum promises
an amendment at Committee Stage to apply negative procedure.

17. Schedule 8 makes amendments to the Wildlife
and Countryside Act 1981. New section 28D (inserted by paragraph
1) deals with appeals in connection with consents and subsection
(6) allows regulations to make provision about appeals. There
is a similar provision in new section 28J(8). The Committee sees
negative procedure as appropriate for both.

recommendation

18. The Committee welcomes the promised amendment
to apply negative procedure to the power in paragraph 4 of Schedule
6 (new section 118B(1)(a)). We have suggested that the powers
in clause 21 and paragraphs 3 and 4 of Schedule 2 affect the balance
between the rights of landowners and the needs of the public which
Parliament has to strike in creating the right of public access.
We recommend the deletion of the powers in clause 21 and paragraphs
3 and 4(2) of Schedule 2.

19. If, however, the House disagrees with our
recommendations, and considers that those powers should stay in
the bill, then clearly they should be made subject to the affirmative
procedure.

20. The Committee considers that no other amendment
is necessary either to the delegated powers in the bill or to
the parliamentary control provided for these powers.